Dr. Sukhdev Singh Gambhir vs Amrit Pal Singh Gambhir & Anr
2017 Latest Caselaw 1847 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

     %                             DATE OF DECISION: 17TH APRIL, 2017

+      IA No.18977/2013 (of defendant no.1 under Section 94 CPC in
       CS(OS) No.1560/2006

       DR. SUKHDEV SINGH GAMBHIR                                ..... Plaintiff
                    Through: None.

                                      Versus

    AMRIT PAL SINGH GAMBHIR & ANR.                ..... Defendants
                  Through: Mr. Anil Sapra, Sr. Adv. with Mr.
                           Ashish Mohan, Adv. for D-1.
                           Mr. Salil Paul, Adv. for D-2.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

IA No.18977/2013 (of defendant no.1 under Section 94 of the CPC)
1.

A suit being Suit No.371/1998 was instituted in this Court by Dr.

Sukhdev Singh Gambhir against his brothers Amrit Pal Singh Gambhir

(defendant no.1) and Inderjit Singh Gambhir (defendant no.2) for partition

of property No.13A/6A, Western Extension Area, Karol Bagh, New Delhi.

The suit, upon enhancement in the year 2003 of the minimum pecuniary

jurisdiction of this Court, was transferred to the District Judge and numbered

as Suit No.281/2003 and re-numbered as Suit No.134/2005 and vide order

dated 29th October, 2005 of Sh. Rakesh Kapoor, Additional District Judge,

Delhi, a preliminary decree of partition declaring the plaintiff Dr. Sukhdev

Singh Gambhir and the two defendants viz. Amrit Pal Singh Gambhir and

Inderjit Singh Gambhir to be having 1/3rd undivided share each in the

property was passed and a Commissioner appointed to explore the

possibility of division of the property by metes and bounds.

2. The defendant no.1 Amrit Pal Singh Gambhir preferred RFA

No.836/2005 against the said preliminary decree and which appeal, with the

consent of the parties, was disposed of vide judgment dated 25 th May, 2006

confirming the preliminary decree for partition but by deeming the same to

have been passed by this Court and by further directing that the defendant

no.1 Amrit Pal Singh Gambhir would be at liberty to prove before the Court

that the parties were in possession of their respective share as per the oral

settlement arrived at between the parties.

3. In pursuance to the aforesaid order, the suit was re-numbered as

CS(OS) No.1560/2006 of this Court and vide order dated 10th October,

2006, a fresh preliminary decree of partition declaring share of each of the

three parties in the suit to be 1/3rd each was passed and a Commissioner

appointed to report whether the property is capable of division by metes and

bounds.

4. The order dated 11th January, 2011 records that the Commissioner so

appointed had reported that partition of the property by metes and bounds

was possible only if the property was to be divided floor wise and there was

a difference in the value of each floor and division by metes and bounds

would require inter se payments to bring all parties at par. Accordingly, the

parties were directed to appear in person before the Court on 29 th April,

2011 to give bids and counter bids in open Court in respect of valuation of

each of the ground, first and second floors comprised in the property.

5. On 12th May 2011, the following order was passed:

"With the consent of the parties, an inter se auction of each floor has been conducted amongst the parties to the suit who are brothers and have one-third share each in the property. The parties have given bids and counter-bids for each floor. Defendant No.3 (sic for defendant No.2) has given highest bid of Rs 1.05 crores for the ground floor and Rs 65 lakhs for the second floor with terrace above the second floor, whereas defendant No. 1 has given the highest bid of Rs 69 lakhs for the first floor. The total bid value of all the three floors comes to Rs 2.39 crores. It is, therefore, directed as under: (1) Defendant No. 2 will get the ground floor and second floor alongwith terrace on the second floor, on payment of Rs 79,66,667/- to the plaintiff, and Rs 10,66,667/- to defendant No.1, whereas defendant No. 1 will get the above-referred first floor and will also get a sum of Rs 10,66,667/- from defendant No. 2; (2) Defendant No. 1 will be the absolute owner of the first floor of the suit property to the exclusion of other defendants, whereas defendant No. 2 will be the absolute owner of the

ground floor, second floor and the terrace above the second floor to the exclusion of other co-owners, on payment being made in terms of the above direction; (3) If defendant No. 1 wants to make any changes on the first floor portion, or raise additional construction in it, he would be entitled to do so in accordance with municipal bye-laws and after obtaining necessary approval from MCD and for this purpose, the plaintiff and defendant No. 2 will render full cooperation to him and will execute all such documents as may be required for this purpose. Similarly, if defendant No. 2 wants to make any changes on the ground floor or second floor or want to raise construction on the terrace of the second floor and/or additional construction on the ground floor, he will be entitled to do so in accordance with municipal bye laws, after obtaining necessary approval from MCD and for that case, the plaintiff and defendant No.1 will render full cooperation to him and will execute all documents as may be required for this purpose; (4) The payment to the plaintiff and defendant No.1 in terms of this order will be made by way of a pay/order/demand draft within six months from today; (5) On payment being made in terms of this order, the plaintiff will have no right, title or interest in the suit property, defendant No.1 will not have any right, title or interest in ground floor, second floor and terrace above the second floor, whereas defendant No. 2 will not have no right, title or interest in the first floor of the suit property. Of course, defendant No.1 will have right of passage through the ground floor to the extent it is necessary for the purpose of ingress to/egress from the first floor of the suit property.

A final decree sheet be drawn accordingly."

6. IA No.16924/2011 was filed by the defendant no.2 Inderjit Singh

Gambhir in the disposed of suit seeking directions to the plaintiff to

cooperate in conversion of the leasehold rights in the land underneath the

property into freehold.

7. Another IA being IA No.17689/2011 was also filed by the defendant

no.2 Inderjit Singh Gambhir tendering the amounts payable by him under

the decree aforesaid to the plaintiff Dr. Sukhdev Singh Gambhir and seeking

a direction to the plaintiff Dr. Sukhdev Singh Gambhir inter alia for

mutation of the property.

8. Yet another application being IA No.17863/2011 was filed by the

defendant no.2 Inderjit Singh Gambhir tendering the pay orders in favour of

the plaintiff Dr. Sukhdev Singh Gambhir.

9. Vide order dated 21st November, 2011, all the aforesaid applications

were disposed of directing release of the pay orders for Rs.50 lacs, Rs.25

lacs and Rs.4,66,667/-, making a total of Rs.79,66,667/- which the defendant

no.2 Inderjit Singh Gambhir had deposited in this Court in favour of the

plaintif and it was also recorded that the plaintiff Dr. Sukhdev Singh

Gambhir has executed necessary documents in Court in favour of "the

defendants".

10. IA No.361/2012 was filed by the defendant no.2 Inderjit Singh

Gambhir in the disposed of suit seeking direction to the plaintiff to deposit

in this Court his share of stamp duty on the decree sheet to be drawn up.

11. The said application was disposed of on 6th February, 2012 upon the

plaintiff Dr. Sukhdev Singh Gambhir paying his share of the stamp duty.

12. IA No.4050/2012 was thereafter filed by the plaintiff Dr. Sukhdev

Singh Gambhir in the disposed of suit but the same is not relevant for the

purposes of the present controversy.

13. It is thereafter that the present application being IA No.18977/2013

has been filed by the defendant no.1 Amrit Pal Singh Gambhir under Section

94 read with Section 151 of the CPC inter alia pleading:

(i) That the defendant no.2 has betrayed the trust reposed by the

defendant no.1 in the defendant no.2.

(ii) That the defendant no.2 always represented to the defendant

no.1 that notwithstanding the shares declared in the bid held on 12 th

May, 2011, the defendants no.1&2 shall always be the joint and equal

owners of the property.

(iii) That believing the defendant no.2 and "as per the mutual

understanding", the defendant no.1 "contributed" in obtaining loan of

Rs.50 lacs from State Bank of India (SBI) to pay off the plaintiff in

terms of order dated 12th May, 2011 and also agreed to repayment

thereof equally by the defendants no.1&2 and further impressed upon

the mother of the parties, with whom the defendant no.2 did not enjoy

good relations, to lend Rs.30 lacs so as to pay off the plaintiff.

(iv) That the defendant no.1 also stood as guarantor to the loan of

Rs.50 lacs obtained by the defendant no.2 and his wife from SBI for

payment of the plaintiff and the title documents of the entire property

were deposited with the bank as security.

(v) That the defendant no.1 also started contributing equally with

the defendant no.2 to the equated monthly installment in repayment of

the aforesaid loan.

(vi) That led by aforesaid representations and promises, the

defendant no.1 joined hands with the defendant no.2 to develop the

entire suit property by entering into a Collaboration Agreement. It

was clearly agreed that the suit property shall be equally divided floor

wise between the defendants after development.

(vii) That the land underneath property No.13A/6A and adjoining

portion of the property belonging to others bearing No.13A/6B was

also converted from leasehold to freehold.

(viii) That the building plans prepared for obtaining sanctions were

also signed by both the defendants.

(ix) That SBI however did not grant permission to demolish the

existing building before the entire loan was repaid.

(x) That in May-June, 2013 there was exchange of communications

between the two defendants so as to identify and demarcate equal half

portions in the suit property post proposed construction.

(xi) That the defendant no1 then realised the betrayal of trust

reposed by him in defendant no.2 on the defendant no.2 refusing to

share the entire property equally with the defendant no.1.

(xii) That the defendant no.2 similarly cheated the defendant no.1

with respect to another property No.6/88, W.E.A., Karol Bagh, New

Delhi also belonging to the parties resulting in the defendant no.1

filing CS(OS) No.2061/2013 in respect of that property against the

defendant no.2 and which suit is pending.

(xiii) That on 8th November, 2013, the defendant no.1 learnt that the

defendant no.2 had deposited a sum of Rs.14,98,127/- in the bank

account of the defendant No.1 and the defendant no.2 on enquiry

informed that the said amount had been deposited towards the amount

due from him to the defendant no.1 under the order dated 12th May,

2011 vide which the final decree for partition was passed in the suit

and towards return of the loan.

(xiv) That the defendant no.2, after making assurances and

representations as aforesaid to the defendant no.1 and after making the

defendant no.1 act on the same, cannot resile therefrom.

(xv) That the defendant no.2, in terms of the order dated 12th May,

2011 supra passing a final decree for partition in the suit has not made

any payment to the defendant no.1 and the amount of Rs.14,98,127/-

unilaterally deposited in the bank account of the defendant No.1

cannot be treated as towards the said payment; reference is made to

Order XXI Rules 1&2 of the CPC; the defendant no.1 has informed

the defendant no.2 that the said amount of Rs.14,98,127/- has been

adjusted towards other dues.

(xvi) That the defendant no.2 has also not vacated the first floor of

the property nor handed over possession thereof to the defendant no.1

and is liable to pay mesne profits / damages for use and occupation

thereof to the defendant no.1.

14. The defendant no.1, in this application being IA No.18977/2013 has

claimed the reliefs of i) modification of the decree dated 12 th May, 2011; ii)

declaration that the defendant no.2 is a rank defaulter of the decree dated

12th May, 2011; iii) allotment of ground floor and second floor (with terrace

rights) of the property to the defendant no.1, allowing the defendant no.1 to

step into the shoes of the defendant no.2 and permitting the defendant no.1

to pay the amount of Rs.1,59,33,334/- (computation of which is given in the

application) to the defendant no.2; and, iv) in the alternative seeking the

reliefs of re-auction of the ground and second floor of the property; and, v)

yet further in the alternative, directing re-auction / re-sale of the property.

15. Notice of the application was issued and the defendant no.2 has filed a

reply to which a rejoinder has been filed by the defendant No.1. Need to

detail the contents of the reply and rejoinder is not felt. Suffice it is to state

that the defendant no.2 i) claims to have paid the amount due from him to

the defendant no.1 under the order dated 12th May, 2011 supra passing the

final decree for partition in the suit by deposit of the aforesaid amount of

Rs.14,98,127/- in the account of the defendant No.1; ii) contends that the

defendant no.2, in para no.6 of IA No.17863/2011 supra had pleaded that

with respect to payment of Rs.10,66,667/- to the defendant no.1 "both the

defendants have reached an amicable mutual understanding in this regard"

and that the defendant no.1 while appearing before this Court on 11 th

November, 2011 and 21st November, 2011 when the said application was

listed did not oppose and consented to preparation of the decree in terms of

order dated 12th May, 2011; and, iii) denies any such mutual understanding

or having made any representations and assurances as claimed by the

defendant No.1.

16. I have hereinabove observed that need to detail the contents of reply

and rejoinder is not felt because the same raise disputed questions of fact

which cannot be decided without evidence. The question for consideration

is the maintainability of the application as the present one and the course of

action to be followed as in the present situation.

17. The senior counsel for the defendant no.1 and the counsel for the

defendant no.2 were heard on the application on 15 th September, 2016 and

27th September, 2016 and order reserved.

18. It was the contention of the senior counsel for the defendant no.1 i)

that the defendant no.2 in terms of the order dated 12 th May, 2011, passing a

final decree for partition in the suit, was to make payment to the defendant

no.1 of Rs.10,66,667/- within six months therefrom i.e. by 11 th November,

2011 and admittedly did not make any payment till 7 th November, 2013 and

the payment made on which date is also disputed by the defendant no.1 as

being in compliance of the order dated 12th May, 2011; ii) that the defendant

no.1 was to cease to have any right, title or interest in ground floor, second

floor and terrace above the second floor only "on payment being made in

terms of this order"; iii) that the defendant no.2 having not made the

payment, the defendant no.1 has not ceased to have rights in the ground

floor and second floor which were to vest in the defendant no.2 to the

exclusion of the defendant no.1 only on making such payment; and, iv)

reference was made to Order XXI Rules 2(2) and 86 of the CPC and to

Periyakkal Vs. Dakshyani AIR 1983 SC 428, P.R. Yelumalai Vs. N.M.

Ravi (2015) 9 SCC 52 and Gopal Krishan Das Vs. Sailendra Nath Biswas

(1975) 1 SCC 815.

19. Per contra, the counsel for the defendant no.2 contended i) that the

defendant no.1 while appearing before this Court on 9th November, 2011,

11th November, 2011, 21st November, 2011 in response to the applications

aforesaid filed by the defendant no.2 in the disposed of suit did not complain

of payment having not been made to him and consented to the decree in

terms of order dated 12th May, 2011 being passed; ii) that payment on 7 th

November, 2013 by the defendant no.2 to the defendant no.1 is also as per

consent of the defendant no.1; iii) that there is no provision for modification

/ alternation / setting aside of the decree; iv) that Section 99 of the CPC

prohibits reversal or variation of the decree; v) that this Court after 12 th May,

2011 has become functus officio; vi) that the defendant no.1 after the order

dated 12th May, 2011, filed IA No.18188/2011 dated 17th November, 2011

seeking only a direction to the plaintiff to vacate and hand over the actual,

physical and vacant possession of one room on the first floor to the

defendant no.1; vii) that the defendant no.1 in the said application admitted

that only the first floor belongs to him and that the payment to the plaintiff

had been made by the defendant no.2 and did not contend that inspite of

expiry of six months on 11th November, 2011, the amount of Rs.10,66,667/-

due to defendant No.1 had not been paid by the defendant no.2; viii) that the

decree dated 12th May, 2011 stands fully satisfied in view of payment by the

defendant no.2 of Rs.79,66,667/- to the plaintiff and of more than

Rs.10,66,667/- to the defendant no.1; ix) reference is made to Order XXI

Rule 1(3) and to a) judgment dated 10th December, 2014 of the Supreme

Court in Criminal Appeal No.741/2009 titled Shlok Bhardwaj Vs. Runika

Bhardwaj; b) Pushpa Devi Bhagat Vs. Rajinder Singh (2006) 5 SCC 566;

c) Rajwanti Vs. Kishan Chand Shehrawat (2009) 160 DLT 185; and, d)

Babu Ram Gupta Vs. Sudhir Bhasin AIR 1979 SC 1528.

20. The counsel for the defendant no.2 has also handed over copy of the

order dated 1st February, 2013 in CS(OS) No.1990/2012 of this Court titled

Inderjeet Singh Gambhir Vs. Prem Singh Gambhir disposing of the suit in

terms of compromise arrived at between the parties.

21. The counsel for the defendant no.2 has also handed over a copy of the

bill dated 15th July, 2015 of the Delhi Jal Board (DJB) in the name of the

defendant no.1 with respect to the first floor of the property and has

contended that in pursuance to the order dated 12th May, 2011, the defendant

no.1 and the defendant no.2 had applied to Municipal Corporation of Delhi

and DJB for mutation of their respective portions in their name and the same

also belies the plea of the defendant no.1 of mutual understanding between

the defendants no.1&2 to share the property equally.

22. I had during the hearing enquired from the senior counsel for the

defendant no.1 as to how the aforesaid disputed questions of fact could be

the subject matter of this disposed of suit.

23. The senior counsel for the defendant no.1 replied that since no

independent suit is maintainable, the said questions have to be decided in

this proceeding only.

24. I had during the hearing further enquired from the senior counsel for

the defendant no.1 as to what is the effect of non-payment of owelty agreed

to be paid to one of the co-owners of the property in lieu of his share in the

property.

25. The senior counsel for the defendant No.1 responded that the same

nullifies the partition entitling the co-owner not paid the owelty to seek a

fresh partition.

26. Section 94 of the CPC which has been invoked to file this application

is titled "Supplemental Proceedings" and empowers the Court, in order to

prevent the ends of justice from being defeated, issue warrant of arrest,

direct furnishing of security, granting of injunction, appointment of receiver

and making all such other interlocutory orders as may appear to the Court to

be just and convenient.

27. Having bestowed my thought to the controversy, I am of the view that

the only question to be adjudicated herein is whether owing to the aforesaid

factual pleas raised by the defendant no.1 which are disputed by the

defendant no.2, the order dated 12th May, 2011 directing a final decree for

partition to be drawn up in terms thereof is to be recalled / modified and

whether the drawing up of the final decree for partition in terms of order

dated 12th May, 2011 and which decree does not appear to have been drawn

up till now, is to be interdicted.

28. The only ground on which the defendant no.1 seeks recall /

modification of the order dated 12th May, 2011 are i) non payment by the

defendant no.2 to the defendant no.1 of the amounts payable thereunder;

and, ii) the subsequent understanding between the parties that instead of

defendant no.2 under the final decree for partition becoming the owner of

the ground floor and second floor with terrace rights above and the

defendant no.1 becoming the owner of first floor of the property, the

defendants no.1&2 will be the owners in equal share of the entire property.

29. As far as the first of the aforesaid grounds is concerned, though

undoubtedly the order dated 12th May, 2011 fixes the time for payment as

six months therefrom and provides that the defendant no.2 would become

the exclusive owner of his portion on payments being made, but does not

provide for the consequences of non payment within the prescribed time. It

is the contention of the senior counsel for the defendant no.1 that the order

dated 12th May, 2011 being a consent order, the time for payment

consensually agreed to cannot be extended by the Court.

30. The order dated 12th May, 2011 reproduced above commences with

the words "With the consent of the parties". However in my opinion the

final decree for partition ordered to be drawn in terms thereof is not

consensual or result of any agreement between the parties and the words

"With the consent of the parties" with which the order dated 12th May, 2011

commences have to be read in the context. As aforesaid, the outcome of the

preliminary decree for partition and the report of the Commissioner

appointed was as recorded in the order dated 11th January, 2011 i.e., that the

property was divisible by metes and bounds only if divided floor-wise but

there was difference in the value of the floors. The Court on that date

considered two options, first of open bidding / counter bidding in respect of

each floor inter se amongst the three parties and the other of asking each of

the three parties to give separate non-revisable valuation in respect of each

floor in separate covers. While the plaintiff Dr. Sukhdev Singh Gambhir

supported the first of the said options, the defendants objected to both the

options and sought appointment of an independent valuer to value each of

the floors. The Court deemed it appropriate to opt for the first of the two

options considered and rejected the suggestion of the defendants. The said

order dated 11th January, 2011 directing the parties to remain present to give

bids and counter bids in open Court in respect of valuation of each of the

three floors was not a consent order but an order / direction of the Court and

which remained un-challenged and attained finality.

31. Notwithstanding the same, the order dated 12 th May, 2011 reproduced

above commences with the words "With the consent of the parties". The

said words have to be read in the context of the parties having not

challenged the earlier order dated 11th January, 2011 which I reiterate was

not a consent order. Moreover, the consent of the parties recorded in the

order dated 12th May, 2011 is only to inter se auction of each floor and not

qua the directions (1) to (5) issued by the Court thereafter. The same are

the orders of the Court and not the agreement of the parties. Thus the time

of six months stipulated by the Court for payments to be made, was an order

/ direction of the Court and which the Court retained the power to extend.

Not only so, both, defendant No.1 as well as the defendant No.2 even now

agree that they arrived at a mutual agreement in respect of the said payment.

The difference is between the version of the two of that mutual agreement.

While the defendant No.1 claims that mutual agreement to be of dividing the

property (after ousting the plaintiff therefrom) equally, the defendant No.2

claims that mutual agreement to be of mere deferment of payment by

defendant No.2 to defendant No.1.

32. As aforesaid, the time of six months stipulated in order dated 12th

May, 2011 for payment expired on 11th November, 2011. The applications

aforesaid filed after the disposal of the suit were listed on 9th November,

2011, 11th November, 2011, 21st November, 2011, 10th January, 2012, 16th

January, 2012, 6th February, 2012 and 2nd March, 2012. The order of each of

the said dates records the presence of the defendant no.1. The defendant

no.1, notwithstanding the time of six months having expired on 11 th

November on none of the said dates raised any grievance or sought

revocation / modification of the order dated 12 th May, 2011 on the ground of

payment having not been made to him or on the ground of the final decree of

partition, towards drawing up whereof the said orders were made, instead of

being in terms of order dated 12th May, 2011 whereunder the defendant No.2

was to be owner of ground and second floor with terrace rights and the

defendant No.1 was to be the owner of first floor of the property, was

required to be of defendant No.2 and defendant No.1 being owners of equal

undivided share in the property. It may be highlighted that the mutual

agreement, according to both, had been reached before payment to plaintiff

i.e. by the aforesaid dates.

33. I further highlight that the mutual understanding even now pleaded in

the application under consideration by the defendant No.1 is not of having

the decree ordered to be passed on 12th May, 2011 varied / modified but of a

fresh agreement between the defendants no.1 &2 with respect to the

property.

34. The said fresh agreement between the defendants no.1&2 with respect

to the property cannot be a ground for revocation / modification of the order

dated 12th May, 2011 or of interdicting with the drawing up of the decree in

terms of order dated 12th May, 2011 till adjudication of disputes which have

arisen qua such fresh agreement and would furnish a fresh cause of action to

the defendant no.1. The disputed questions aforesaid cannot be subject

matter of this disposed of suit.

35. In such fresh proceeding if any initiated by the defendant no.1, all the

questions as raised by the defendant no.1 in this application shall be

adjudicated in accordance with law and the said claim of the defendant no.1,

in view of the case set up by the defendant no.1 of a fresh agreement

subsequent to 12th May, 2011would remain unaffected by the order dated

12th May, 2011 and the decree drawn up in pursuance thereto.

36. I therefore dispose of the application with liberty to the defendant no.1

to take appropriate proceedings in accordance with law and with the

clarification aforesaid and leaving the parties to bear their own costs. Since

this application itself has remained pending for considerable time and there

has been delay in pronouncing this order as well, the defendant no.1 in any

such fresh proceeding shall be entitled to benefit of Section 14 of the

Limitation Act, 1963. As far as the relief claimed in the application, of

recovery of possession of the first floor is concerned, the defendant No.1 is

at liberty to execute the decree to be drawn up.

RAJIV SAHAI ENDLAW, J.

APRIL 17, 2017/„gsr‟..